Deposition Preparation Can Pay Big Dividends

7 Deposition Tips for Energy Industry Executives

In the energy industry, litigation can be a reliable companion. The riskiness of the industry, combined with steep exploration costs, practically guarantee that most highly placed oil and gas executives will, at one time or another during their career, be deposed.

Depositions matter. In fact, they usually matter more than what is said at trial because deposition comments conceivably can prevent a trial from happening in the first place. And if the case does go to trial and there’s even the slightest discrepancy between what’s said at trial and what was said in a deposition, then be certain that an opponent will try to make a convincing argument that the interpretation that is least advantageous to you is the right one (and vice versa).

Given the potential peril that comes with any deposition, experienced lawyers put a premium on rigorously preparing executive clients beforehand. This exercise is well worth the effort and typically pays off by developing a wealth of supporting testimony and leaving opponents less to work with. That’s a win.

It’s worth noting, though, that many oil and gas executives are highly uncomfortable with depositions. They aren’t used to answering questions since they’re usually the ones asking them, and they really don’t like being in the hot seat. The following tips help clients prepare for a few hours of even the most aggressive attorney:

  1. Answer the Question: When preparing my executive clients for a deposition, I turn on the recorder and ask “Do you know what time it is?” Clients typically answer by telling me the time, and I respond that my question was never answered. This confuses clients until I play the tape and they realize that I simply asked whether they knew what time it was. The obvious answer to that question was “yes” and not “10:15 a.m.” Depositions aren’t normal conversations. They’re question-and-answer sessions in which the answers will be parsed and dissected by extremely capable technicians who come with a very distinct agenda.
  2. Control the Tempo: Being deposed is like trying to run out the shot clock while opposing counsel is pressing a fast break, run-and-gun offense in hopes of putting you on edge. Don’t let it happen. In order to properly answer deposition questions, you have to take at least a little time to think about what you’re being asked, which is difficult to impossible if you allow the opposing counsel to rush you. Thankfully, there’s no clock ticking down the seconds during a deposition. Within reason, you can take as long as you want or need to formulate cogent, well thought-out answers.
  3. Steer Clear of Innuendo: Executives might be tempted to aim disparaging comments at the opposing side during a deposition. But resisting that temptation can prevent the situation from careening into chaos. When executives stray into the land of implication and scuttlebutt, they risk opening a Pandora’s Box that can cause as much damage to their reputation and their case as they might hope to inflict on the opposing side. Better to take a deep breath, restate the question in a way you would like it to be fashioned, and state the facts.
  4. Know Your Role in the Corporate Defense: Oil and gas executives may have a thorough understanding of the workings of their companies, but a wealth of institutional knowledge can give executives a false sense of security if they’re heading into a deposition. It is crucial for executives to know the context in which they will be testifying and how their legal team wants them positioned in relation to the company’s defense. Companies can save future headaches by requiring executives to work closely with counsel to determine exactly what information they will and will not be relied upon to provide during the deposition process.
  5. Ambiguities and Ventriloquism: During depositions, lawyers will use all the ambiguities in the English language to their advantage. Is a hallway chat a “meeting?” Is an email a “document?” In cases like these, specificity is your friend. Additionally, lawyers aren’t ventriloquists, so they can’t put words in your mouth. So if you think your comments are being mischaracterized, then respond with “I wouldn’t say that. I would say . . . ” The deposition may be running long and you may be getting hungry, but those concerns pale in comparison to adopting the opposing attorney’s terminology only to find out later that’s really not what you meant.
  6. Lose the Ego: Few oil and gas executives became successful by being shy and retiring. They probably did it the old fashioned way: by being disciplined, demanding, type-A workaholics. But those personalities don’t always play well with juries. So it’s smart to remember that executives are no more or less important than custodians in the court’s view. Reining in one’s ego is sometimes the hardest part of witness preparation, but it pays off. Smart executives keep their cool, listen to the questions and give well thought-out answers. They also aren’t afraid to say “I don’t know.”
  7. Practice Makes Perfect: A practice deposition, complete with videographer, is an absolute must. The video shows whether executives understand the questions and their role in the company’s case. The video will also help the executive see how he or she appears on camera. Is she sitting up straight? Does the attire and hair style look right on camera?  And finally, no eating or chewing gum; only water (but only if the hand isn’t shaking while picking up the glass). I also like to switch roles with my clients, letting them be the opposing lawyer while I play the executive. This exercise makes tangible and concrete what had previously been a fairly intangible and amorphous concept.

Depositions are difficult and, more often than not, at least a little unpleasant. But the better prepared executives are before heading into a deposition, the more likely they are to come off as trustworthy, honest and sincere.